Clark & Enersen, Hamersky, Schlaebitz, Burroughs & Thomsen, Inc. v. Schimmel Hotels Corp.

• Decision Date: 11 December 1975
• Docket Number: No. 39963,39963
• Citation: 235 N.W.2d 870,194 Neb. 810
• Parties: CLARK & ENERSEN, HAMERSKY, SCHLAEBITZ, BURROUGHS & THOMSEN, INC., Appellant, v. SCHIMMEL HOTELS CORPORATION et al., Appellees.
• Court: Nebraska Supreme Court

Page 870

235 N.W.2d 870

194 Neb. 810

CLARK & ENERSEN, HAMERSKY, SCHLAEBITZ, BURROUGHS & THOMSEN, INC., Appellant, v. SCHIMMEL HOTELS CORPORATION et al., Appellees.

No. 39963.

Supreme Court of Nebraska.

Dec. 11, 1975.

Syllabus by the Court

1. Estoppel is not a cause of action nor does it give rise to one. Its purpose is to preserve rights already acquired and not to create new ones.

2. A petition which fails to plead actionable facts is vulnerable to a general demurrer.

3. The court must assume that the facts are as alleged, and cannot assume the existence of any facts and alleged, nor find facts in aid of the pleading, nor consider what evidence may be introduced at the trial.

4. A promise may be stated in words, either oral or written, or may be inferred wholly or partly from conduct.

R. L. Jeffrey, Michael F. Lee, Lincoln, for appellant.

Pierson, Pierson & Fitchett, Lincoln, for appellees.

Heard before WHITE, C.J., and BOSLAUGH, McCOWN and BRODKEY, JJ., and TESAR, District Judge.

McCOWN, Justice.

Plaintiff's petition seeks to recover for preliminary architectural and engineering services performed in connection with a contemplated 100-unit motor hotel addition to a hotel on which construction was never begun. The amended petition proceeded on two counts. Both counts seek to recover for the same work and both pray for recovery of an identical amount. The second count is on a quantum meruit theory of recovery. Defendants' demurrer to that count has been overruled and the case must still be tried on that count. Defendants' demurrer to the first count of plaintiff's amended petition was sustained by the District Court. Plaintiff elected to stand on the first count and declined to plead further. The District Court dismissed the first count and plaintiff has appealed.

It is difficult to determine exactly what theory the first count rests upon. The critical allegations are contained in paragraphs three and five of the first count of the amended petition. Paragraph three alleges that plaintiff performed the architectural and engineering services 'for Defendants at their special instance and request * * *.' Paragraph five alleges that defendants made representations and led plaintiff to believe that defendants would pay plaintiff 'fees for architectural services in connection with the project * * *' and that plaintiff relied upon such representations and rendered and performed the services, and 'that Defendants should now be estopped from denying they so represented and so induced the Plaintiff to render and perform such architectural services and to incur such expenses.' Paragraph five also refers to a number of attached letters and documents which are incorporated by reference. Included is an AIA standard form of agreement between owner and architect prepared for execution by the plaintiff and one of the defendants. The form was never executed by any of the parties, but plaintiff alleges that at the specific instance and request of the defendants, plaintiff prepared and delivered the form on March 27, 1969. Essentially the documents attached add nothing to the general quantum meruit allegations, nor do they add facts which would establish the making of an express contract. In this case, count II already states facts sufficient to constitute a cause of action on quantum meruit. Under those circumstances, unless count I states facts sufficient to constitute a cause of action other...